Sexually Motivated Finding by Fitness to Practise Panel Overturned on Appeal
13 October 2014
Author: Rachael McAdorey
Sexually motivated finding by Fitness to Practise Panel overturned on Appeal
Angamuthu Arunkalaivanan v General Medical Council  EWHC 873 Admin
Mr Arunkalaivanan (known as Mr Arun), appeared before a Fitness to Practise Hearing in December 2013, to respond to charges made by a female patient (‘Patient A’). The Fitness to Practise Panel (‘the Panel’) determined that a breast examination performed by Mr Arun on 28th October 2010, was conducted in an inappropriate manner in the absence of a chaperone, and was sexually motivated. The Panel concluded that Mr Arun’s fitness to practise was impaired, and imposed a 12 month suspension on his registration.
Mr Arun subsequently appealed the Panel’s decision under section 40 of the Medical Act 1983, on the basis that the Panel’s decision was wrong.
Mr Arun was a consultant obstetrician and urogynaecologist at the Sandwell and West Birmingham Hospitals. He did not have any previous regulatory history, and supportive testimonial letters were provided by medical colleagues, nurses and former patients. He was portrayed as a committed doctor.
Patient A attended Mr Arun with symptoms of urinary frequency and difficulty voiding her bladder. Due to a number of factors, including Patient A arriving late for her appointment, the appointment was hurried. Following a vaginal examination (without a chaperone), Patient A mentioned to Mr Arun, that she had experienced breast pain. Mr Forbes, a consultant obstetrician and gynaecologist, called as a expert on Mr Arun’s behalf, confirmed that it would have been ‘remiss’ of him, not to have conducted a breast examination. Therefore it was both clinically indicated, and wanted by Patient A.
The examination was the subject of a factual dispute between Mr Arun and Patient A. It was his case that he performed a proper examination, whereas Patient A maintained that he indecently assaulted her by groping her breasts. The Panel concluded that Patient A’s evidence was to be preferred, and decided that Mr Arun’s conduct was sexually motivated.
Amanda Yip QC, hearing the appeal, confirmed that what was called for, was a ‘comparative evaluation of each party’s evidence.’ The Court did not have the benefit of seeing and hearing the witnesses give evidence, and the case of GMC v Professor Sir Roy Meadow  EWCA Civ 1390 established that the Court must bear in mind, and give as much weight as appropriate, to factors including the fact that the Panel will have an understanding of what the medical profession expects of its members, the questions of fact, and the overall value judgment made by the Panel, which are akin to jury questions.
On bringing the Appeal, Mr Arun accepted that if the Court upheld the findings of the Panel, including that of sexual motivation, there could be no possible complaint about the determinations on misconduct, impairment and sanction. Equally, Counsel for the GMC confirmed that if the Court quashed the finding, the GMC would not seek to uphold the decisions on impairment and sanction.
The Court took into account the following factors:
- When Mr Arun was notified that a complaint had been made, his immediate concern was that he had missed breast cancer;
- Mr Arun did not have a chaperone due to being rushed, and because he knew the patient;
- It was difficult for the Panel to decide on two very different versions of events. Once they made the primary findings of fact, opinion fell away so they only needed to decide that either this was a sexually motivated touching of the breast, or that a medically indicated breast examination was performed so poorly and inappropriately that it lead Patient A to believe that it was a sexual touching, notwithstanding the fact that there was no sexual motivation on Mr Arun’s part. The Appeal Judge concluded that this was an omission.
The Court found that the Panel appeared to have concluded that because a chaperone was not present during the breast examination, that this suggested evidence of sexual intent. A chaperone was not present during the vaginal examination. The Panel’s reasoning in relation to sexual motivation was very closely tied up with their decision that Patient A was the more credible and reliable witness. The GMC’s submissions effectively contained little basis for supporting the finding of sexual motivation.
Matters suggesting an absence of sexual intent on Mr Arun’s part were:
- His high professional standing and reputation, evidenced by character references;
- His previous, appropriate history with Patient A;
- The absence of any sexual remarks and lack of evidence of any sexual gratification;
- His otherwise appropriate clinical management of Patient A;
- The normal vaginal examination, and the clinical indication for the breast examination;
- The agreed fact that the appointment was rushed;
- Evidence from an Indian textbook, demonstrating his method of examination;
- The inherent probability of a man with an unblemished history and career, suddenly committing an indecent assault; and
- His immediate query to the complaint was that he had missed breast cancer.
The Appeal judge found it appropriate to reverse the finding that Mr Arun’s conduct was sexually motivated. It followed that the Judge must also quash that part of determination of the facts, and that Mr Arun’s fitness to practise was impaired. The sanction imposed was also quashed.
For more information please contact Rachael McAdorey.